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Overstayed < 1 year & took voltary dep in '10 after removal proceeding/NTA issuance. Am I subject to 3 yr bar for immigrant visa

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Remained in US after Oct 31 09 without authorization. Received NTA Removal Proceeding on Aug 9 2010. On Sept 13 2010 granted voluntary departure by immigration judge. Left US on Oct 15 2010. My priority date is approaching and I am likely to have my immigrant visa interview in the near future (petition filed by my mother who is US Citizen). Am I likely to be subject to the 3 year or 10 year bar? What should I do or can I do to avoid bar (in my view, I was unlawfully present < 365 days and also took VD after removal proceeding so should not be subject to 3 year bar).

Attorney Answers 5

Posted

Correct. You are not subject to 3 year bar if granted voluntary departure by IJ and your ULP was less than 365 days.

Husna Alikhan, Esq., www.alikhanlaw.com TEL: 702-374-6619. Nothing in this response to your posting on AVVO is intended or should be considered as legal advice to your specific situation. Our posting is intended to provide general information of interest to the public. Facts relevant to your situation and not disclosed in your posting may affect your specific legal rights and remedies.

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Husna F. Alikhan

Husna F. Alikhan

Posted

Default Re: Avoiding 3 year bar by VD from IJ 212(a)(9)(B)(i)(I). . . was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e) [sic]) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or Beginning Apr. 1, 1997, a person who is unlawfully present in the U.S. for a period of more than 180 consecutive days but less than one year who voluntarily departs the U.S. before commencement of proceedings is barred from readmission for 3 years from the date of the person’s departure or removal. INA §212(a)(9)(B)(i)(I), 8 U.S.C. §1182(a)(9)(B)(i)(I). If a person is granted voluntary departure (VD)*after*proceedings are initiated s/he is not subject to 3-year bar. Cable, DOS, 98-State-060539 at ¶¶17–19 (Apr. 4, 1998), published on AILA InfoNet at Doc. No. 98040490. The distinction that allows persons to escape the 3-year bar but not the 10-year bar if they are granted VD after proceedings has been upheld. Cervantes-Ascencio v. INS, 326 F.3d 83, 85–86 (2d Cir. 2003) [statute making exception is clear on its face and agency interpretation of statute is reasonable under Chevron].

Asker

Posted

You are correct Attorney Husna. I agree with you completely. I think the issue or challenge arises when during an IV interview, the interviewers rushes to a conclusion or is unaware or out of frustration or simplicity rejects/denies the visa. Of course, under such a circumstance working with a competent law firm and lawyer is critical who can and will follow up and defense your case. Hope your comment is read by other lawyers and the community at large. I would also like to point to: I would like to point you to the following: http://shusterman.com/newsletterusimmigrationmay2008.html#5 There is a little-known exception to the three-year bar, I began. If you simply leave the U.S. after accumulating 180 days of unlawful presence, you cannot return for three years. However, if you are ordered by an Immigration Judge to leave “voluntarily”, the bar does not apply. ----------------------------------------------------------------------------------------------------------------- http://shusterman.com/newsletterusimmigrationmay2008.html#5

Asker

Posted

Dear Attorney Husna: You were absolutely correct. Visa issued and not subject to 3 year nor 10 year bar. correct.

Posted

It sounds like you are subject to the 3 year bar. You overstayed in the US for more than 180 days and are therefore subject to a 3 year bar. Consult an attorney.

Alexus P. Sham alexuspshamesq@gmail.com (917) 498-9009. The above information is only general in nature and does not constitute legal advice. It does not create an attorney-client relationship.

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Asker

Posted

I would like to point you to the following: http://shusterman.com/newsletterusimmigrationmay2008.html#5 There is a little-known exception to the three-year bar, I began. If you simply leave the U.S. after accumulating 180 days of unlawful presence, you cannot return for three years. However, if you are ordered by an Immigration Judge to leave “voluntarily”, the bar does not apply. --------------------------------------------------------------------------------------------------------------------------------- Surely, not an easy case and this is where a lawyer who knows the rules inside out and can defend your case is helpful and useful. Best regards,

Asker

Posted

You are absolutely wrong and incorrect. Shame. I was not subject to any bar as mentioned above. Visa was issued and not subject to 3 year nor 10 year bar.

Posted

You really need to meet with a local immigration attorney and bring in any documents that have been all ready filed in your case. You need to see a local immigration attorney immediate.

Without meeting with you, and knowing all the facts and circumstances of your case, my opinion is not to be construed as legal advice, just general educational information.

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Posted

By your facts it appears you are subject to a three year bar.

973-984-0800. Please be advised my answers to questions does not constitute legal advice and you should not rely on it, due to the fact that we have never met, I have not been aprised of the facts in you case nor have I reviewed any documents.

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Asker

Posted

In addition to what Attorney Husna has pointed out, I would also like to highlight the below from Attorney Shusterman: There is a little-known exception to the three-year bar, I began. If you simply leave the U.S. after accumulating 180 days of unlawful presence, you cannot return for three years. However, if you are ordered by an Immigration Judge to leave “voluntarily”, the bar does not apply. ----------------------------------------------------------------------------------------------------------------- http://shusterman.com/newsletterusimmigrationmay2008.html#5 Again, by no means an easy situation or case to defend, and yes the interviewer could still reject the case due to a lack of understanding, false interpretation etc., and this is where a dependable and top-notch attorney who'll fight your case is necessary. However, based on the law not subject to 3 year bar.

Asker

Posted

Visa issued and not subject to 3 year nor 10 year bar. I was correct.

Posted

The three year bar is triggered at 180 days. The 10 year bar is triggered at 1 year. So you are subject to that bar. You should call an immigration lawyer to determine the best way to avoid having to file the waiver because the details of your case need to be confirmed and complete before determining this strategy.

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Asker

Posted

In addition to what Attorney Husna has pointed out, I would also like to highlight the below from Attorney Shusterman: There is a little-known exception to the three-year bar, I began. If you simply leave the U.S. after accumulating 180 days of unlawful presence, you cannot return for three years. However, if you are ordered by an Immigration Judge to leave “voluntarily”, the bar does not apply. ----------------------------------------------------------------------------------------------------------------- http://shusterman.com/newsletterusimmigrationmay2008.html#5 Again, by no means an easy situation or case to defend, and yes the interviewer could still reject the case due to a lack of understanding, false interpretation etc., and this is where a dependable and top-notch attorney who'll fight your case is necessary. However, based on the law not subject to 3 year bar.

Asker

Posted

I was not subject to any bar as mentioned above. Visa was issued and not subject to 3 year nor 10 year bar.

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